Opinion Analysis: The mere failure to give a rights advisory does not render consent involuntary in United States v. Olson, No. 14-0166
CAAF decided the Air Force case of United States v. Olson, 74 M.J. 132, No. 14-0166/AF (CAAFlog case page) (link to slip op.), on Thursday, April 2, 2015. The court holds that the military judge did not err in concluding that Appellant’s consent to a search of her home was voluntary, affirming the decision of the Air Force CCA.
Judge Stucky writes for a functionally-unanimous the court. Chief Judge Baker writes separately, concurring.
CAAF granted review to determine:
Whether the military judge erred by denying the Defense’s motion to suppress the evidence seized from Appellant’s house because the totality of the circumstances indicated that Appellant’s consent to search was involuntary.
In August 2011, Appellant’s military supervisor contacted Air Force investigators with suspicions related to Appellant’s civilian husband, who was allegedly involved in illegal drug activity. Appellant was sent to meet with Air Force investigators in a conference room and Appellant was not advised of her Article 31(b) right to remain silent. Then:
The agents advised Appellant that her husband was suspected of distributing illegal drugs on base and that he had been arrested by Calvert County, Maryland, police. The agents asked for consent to search her residence, which she was reluctant to give. Appellant wanted to telephone her husband but was dissuaded from doing so by the agents. At the time, Appellant resided off base with her husband in Maryland, although he had been absent from the house since July. During a smoke break outside the building, an agent tried to convince her to consent to the search. Appellant understood that the agents could try to convince her to consent, and she worried that they were trying to get her in trouble.
Slip op. at 4. Eventually she consented, and drugs and drug paraphernalia were discovered in the residence. She was later convicted contrary to her pleas of not guilty, by a special court-martial composed of officer members, of dereliction of duty, spoilage of personal property, wrongful possession of ketamine, and larceny, in violation of Articles 92, 109, 112a, and 121. She was sentenced to confinement for four months, forfeiture of $978.00 pay per month for 4 months, reduction to E-1, and a bad-conduct discharge. The convening authority disapproved one month of the adjudged forfeitures but otherwise approved the adjudged sentence.
CAAF’s decision is a rather mundane application of the six non-exclusive factors for determining the voluntariness of consent to search adopted in United States v. Wallace, 66 M.J. 5, 9 (C.A.A.F. 2008). Those factors are:
(1) the degree to which the suspect’s liberty was restricted;
(2) the presence of coercion or intimidation;
(3) the suspect’s awareness of his right to refuse based on inferences of the suspect’s age, intelligence, and other factors;
(4) the suspect’s mental state at the time;
(5) the suspect’s consultation, or lack thereof, with counsel; and
(6) the coercive effects of any prior violations of the suspect’s rights.
Applying these factors to the facts in Olson, Judge Stucky concludes that:
Although Appellant was a suspect and should have been advised of her rights, this failure did not result in a coercive effect. No statements Appellant made before she was advised of her rights were entered into evidence.
On the whole, we agree with the military judge’s specific findings as to the Wallace factors. His finding that Appellant voluntarily consented to the search of her home is not clearly erroneous under the totality of the circumstances. Appellant’s consent to search was a product of her free and unconstrained choice, not a result of duress or coercion, express or implied. The military judge did not abuse his discretion in admitting evidence derived from that consent to search.
Slip op. at 9-10. Chief Judge Baker’s concurring opinion emphasizes the non-exclusive nature of the Wallace factors:
However, the issue in this case is whether Appellant’s consent to search was voluntary. To determine the consent was voluntary, the totality of the circumstances must be considered, which may include more than just the six Wallace factors. Schneckloth v. Bustamonte, 412 U.S. 218, 227 (1973). This case requires that we consider the additional fact that Appellant was not told she was a suspect when she gave her consent in order to determine whether her consent was voluntary.
Con. op. at 1. Chief Judge Baker concludes that “Appellant knew, or should have known, she was a potential suspect,” con. op. at 3, and that Appellant’s consent not only was not coerced, it was voluntary,” con. op. at 3.
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• Appellant’s reply brief
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